Shabbat Parashat Shelach 5772

P'ninat Mishpat: Transparency in Window Making – part I

Case:The plaintiffs (=pl) were planning to move into a home they were building, and reached an agreement with the defendant (=def) to provide special windows by a certain date. Pl paid tens of thousands of shekels, half of the order, as a down payment. Def came two months before the critical date and took measurements, yet much of the order was not ready on time. Def blames pl for not giving all the details necessary, especially the color of the internal shades. Pl responds that def never told him that such information was holding up the order. As the time to leave their old home and enter the new one approached, def agreed to provide temporary windows but only if pl paid an additional quarter of the order,considering that half the work was already completed. Pl refused, because according to their agreement, the balance was due only upon installment of the finished product, and hired someone else to make temporary windows. The two sides are interested that the work should be completed, but there are outstanding financial disputes.

Ruling:[This time we will discuss whether def must compensate pl for the expense of the temporary windows, which they felt compelled to install.]

First it is necessary to determine who is responsible for the fact that the windows were not ready on time. Considering that def had all the basic information for the production of the windows and was aware of pl’s pressing time constraints, it was his obligation to let pl know if some minor matter was holding up the production. His failure to make the deadline, after receiving half the payment and his unwillingness to provide temporary windows to enable basic living conditions without further charge, was a breech of contract.

Does the breech of contract justify deducting the expense of temporary windows from the balance? The mishna (Bava Metzia 75b) says that if a worker’s refusal to do his job will cause damage to the hirer, he can hire someone on the account of the worker or trick the worker into working. While def did not refuse to come, his negligence, which threatened preventing pl from moving in, is equivalent, due to the expense of extending their existing rental and due to personal considerations.

The gemara (ibid. 78a) limits the hirer’s right to hire someone else to the “value of the worker’s wages.” Rashi says that this means only to withhold money from partial work that the worker already did. The Rosh (accepted by the Shulchan Aruch- see S’ma 333:25) says he can hire someone new to work up to the amount promised to the original worker, even if it means that the worker will pay out of pocket. Therefore, pl could hire someone to install temporary windows up to the value of their contract (minus the cost of supplies). On the other hand, pl was not allowed to be wasteful in ordering temporary windows (see S’ma 333:26; Shach, CM 333:35). Beit din accepted only partially pl’s claim that given the rush to install the windows and not knowing how much time they would remain, they could order relatively high quality windows. Using an expert to estimate costs, beit din awarded pl a significant but not total deduction from the balance for the temporary windows.